Crimpro Flashcards
THE BASICS
definition
[the exclusionary rule]
= prohibits the prosecution from using in its case-in-chief evidence obtained in violation of D’s
- Fourth Amendment rights
- Fifth Amendment rights
- Sixth Amendment rights
THE BASICS
8 exceptions
[the exclusionary rule]
exclusionary rule does NOT apply
- to GRAND JURY proceedings
- in CIVIL proceedings like IRS civil proceedings and IMMIGRATION hearings
- when the search violated an AGENCY’S internal policies or STATE law (aka applies only when search violates either U.S. Constitution or fed statute)
- to PAROLE REVOCATION proceedings
- as a remedy for failure to KNOCK & ANNOUNCE
- where use of the illegally obtained evidence was HARMLESS ERROR
- good faith exceptions (5)
- impeachment exceptions (2)
THE BASICS
5 good faith exceptions
[the exclusionary rule]
The exclusionary rule does NOT apply
- if the pigs relied in GOOD FAITH on binding APPELLATE PRECEDENT that is LATER OVERTURNED by a Supreme Court decision
- if the pigs relied in GOOD FAITH on STATUTE/ORDINANCE that is LATER declared UNCONSTITUTIONAL
- if the pigs made a REASONABLE MISTAKE in INTERPRETING the law (ex = that vehicle must have 2 working brake lights when only 1 was required didn’t invalidate stop or arrest)
- if the pigs relied in OBJECTIVE GOOD FAITH on COMPUTER INFO with CLERICAL ERRORS (ex = arrest warrant had been withdrawn but remained on computer system due to an error by court personnel)
- if the pigs relied in OBJECTIVE GOOD FAITH on a DEFECTIVE SEARCH WARRANT
THE BASICS
2 impeachment exceptions
[the exclusionary rule]
Evidence excluded under the exclusionary rule may be used for impeachment purposes in the following situations
- An otherwise VOLUNTARY CONFESSION
- that violates MIRANDA or SIXTH Amendment (and thus would not be admissible in prosecution’s case-in-chief)
- may be used to impeach D as a witness
- (BUT a truly involuntary confession may not) - Evidence obtained in an ILLEGAL SEARCH
- may be used to impeach
- D’s credibility as a witness (ex = if he lies about possession of the evidence)
- (BUT may not be used to impeach other witnesses)
FRUIT OF THE POISONOUS TREE
definition
[the exclusionary rule]
A court will exclude not only illegally seized items but also all evidence derived from exploiting illegally seized items
(this doctrine expands the scope of the exclusionary rule)
FRUIT OF THE POISONOUS TREE
5 exceptions
[the exclusionary rule]
The evidence will not be excluded where the government can break the link between the unconstitutional act and the evidence, such as
- the pigs had an INDEPENDENT source
- INEVITABLE discovery
- INTERVENING acts of free will on the part of D
- ATTENUATION doctrine
- Also if an illegal search enables the pigs to LOCATE A WITNESS, the witness’ testimony will rarely be excluded as fruit of the poisonous tree
FRUIT OF THE POISONOUS TREE
attenuation doctrine
[the exclusionary rule]
= intervening circumstances between the unconstitutional po-po act and discovery of the evidence
EXAMPLE = officer lacked reasonable suspicion to initially stop D, but officer’s discovery of valid pre-existing arrest warrant attenuated the connection between the unlawful stop and drug-related evidence seized from defendant during search incident to arrest and thus the evidence was admissible
FRUIT OF THE POISONOUS TREE
confessions that violate the Fifth and Sixth amendments
[the exclusionary rule]
Confessions obtained in violation the Fifth or Sixth Amendment are inadmissible as evidence of guilt
FRUIT OF THE POISONOUS TREE
confessions that violate the Fourth amendment
[the exclusionary rule]
Confessions resulting from an illegal arrest are inadmissible, unless there is a weak link between the illegal po-po conduct and the challenged evidence
FRUIT OF THE POISONOUS TREE successive confessions (w/ and w/o miranda warnings)
[the exclusionary rule]
Issue = If a defendant (subject to custodial interrogation) confesses without receiving Miranda warnings and then confesses again after receiving Miranda warnings, is the second confession tainted by the earlier unlawful confession?
“Question first, warn later” nature of the questioning was a CALCULATED TECHNIQUE to undermine Miranda = 2nd confession probs inadmissible
“Question first, warn later” nature of the questioning was UNPLANNED and INADVERTENT = 2nd confession probs admissible
THE BASICS
when must Miranda warnings be given?
[miranda warnings]
The pigs must give Miranda warnings to any person
- in CUSTODY
- who is subject to INTERROGATION
- by GOV officials
(no matter how minor the crime)
THE BASICS
custody
[miranda warnings]
a person is in custody when a reasonable person would conclude that he or she is not free to terminate the interrogation and the relevant environment presents the same inherently coercive pressures as station-house questioning (i.e., po-po car, handcuffs)
BUT routine traffic stops, Terry stops, general questions at the scene of a crime, voluntary appearances at the pigs’ station, and probation officer interviews are usually not considered “custody”
THE BASICS
interrogation
[miranda warnings]
=any conduct (e.g., questions, statements, actions) by the po-po for the purpose of eliciting damaging statements
CONFESSIONS
3 key takeaways
[miranda warnings]
- All confessions must be voluntary under DUE PROCESS CLAUSE
- Voluntariness is judged on a SUBJECTIVE basis, considering the TOTALITY of the circumstances
- A confession is involuntary only if it is the result of PO-PO COERCION (as opposed to D’s mental illness or coercion by private parties)
CONFESSIONS
4 factors in assessing voluntariness of confessions
[miranda warnings]
- the defendant’s personal characteristics (e.g., age, intelligence)
- the nature of the detention
- the manner of interrogation
- the use of force, threats, promises, or deceptions
CONFESSIONS
procedural requirement for hearing to determine confession admissibility
[miranda warnings]
The hearing to determine the admissibility of a confession must be done outside the presence of the jury
CONFESSIONS
3 instances in which Miranda warnings NOT required
[miranda warnings]
- before SPONTANEOUS STATEMENTS
(aka when person blurts out info) - in case of PUBLIC SAFETY EMERGENCY
(ex = D, who is in po-po custody at the scene of a crime, is asked, “where did you toss the gun?”) - for WITNESS SUBPOENAED to testify before GRAND JURY
CONFESSIONS
prosecutorial misconduct
[miranda warnings]
The prosecutor may not “comment” to the jury about a person’s exercise of his Miranda rights or D’s refusal to testify at trial.
CONFESSIONS
waivers of miranda (3 things)
[miranda warnings]
- Waivers must be KNOWING, VOLUNTARY, and INTELLIGENT
- Waivers will NOT be presumed
- NOTE = failure of the pigs to inform a suspect that his family has retained an attorney for him (and that the attorney has been in contact with the pigs) does not invalidate the suspect’s waiver of his Miranda rights
FIFTH AMENDMENT PRIVILEGE
terminating interrogation
[interrogation]
- An accused may terminate interrogation
- prior to or during the interrogation
- by invoking either
a. the right to remain silent or
b. the right to counsel
FIFTH AMENDMENT PRIVILEGE
invoking right to remain silent
[interrogation]
If an accused UNAMBIGUOUSLY invokes the right to remain silent, the pigs must cease questioning (aka SCRUPULOUSLY HONOR the request)
BUT later questioning may occur after a DELAY and with NEW Miranda warnings (at least in regard to a different crime)
NOTE = detainee’s SILENCE does NOT constitute INVOCATION of right to remain silent
FIFTH AMENDMENT PRIVILEGE
invoking right to counsel
[interrogation]
Once the accused makes an UNAMBIGUOUS request for counsel to assist with custodial interrogation, questioning must cease and CANNOT BE RESTARTED by the pigs (for entire time accused is in custody AND 14 days thereafter)
UNLESS
1. the attorney is actually PRESENT for the future interrogation or
2. the accused INITIATES further communication, exchanges, or conversations about the investigation (ex = by asking “What is going to happen to me now?”)
(NOTE = this invocation is NOT offense-specific)
(also, this is the only use of 5th amendment for right to counsel)
FIFTH AMENDMENT PRIVILEGE
use of informant
[interrogation]
NOT a violation of the Fifth Amendment to place an informer (or undercover officer) in the accused’s cell to elicit statements from the accused
(b/c Miranda is inapplicable to interrogation by someone the accused does not know is a pig BUT if the accused has been CHARGED, the Sixth Amendment would apply)
SIXTH AMENDMENT PRIVILEGE
right to counsel
[interrogation]
Under the Sixth Amendment, there is a right to counsel AFTER the accused has been charged or indicted
The accused’s lawyer must be present for ANY FURTHER interrogation at this point
The Sixth Amendment is OFFENSE-SPECIFIC = the pigs may interrogate the accused about different crimes (related or unrelated to the charged crime)
SIXTH AMENDMENT PRIVILEGE
waiver of right to counsel
[interrogation]
The accused may waive his Sixth Amendment right to counsel
this waiver does NOT require approval or presence of court-appointed counsel (at least where the accused did not request such appointment)
SIXTH AMENDMENT PRIVILEGE
blockburger test
[interrogation]
two crimes are considered different if each requires proof of an additional element that the other crime does not require
(relevant b/c privilege is offense-specific, need to know if it’s a different crime)
SIXTH AMENDMENT PRIVILEGE
use of informant
[interrogation]
Once the defendant is charged (or indicted), the pigs may not place an informer in his or her cell to elicit statements (i.e., initiate a confession) from the accused about the crime for which he or she has been charged
BUT it’s NOT a violation of Sixth Amendment
- to place an informer in the accused’s cell MERELY TO LISTEN to the accused
- to place an informer or undercover officer in the accused’s cell to ELICIT statements about a DIFFERENT crime
SIXTH AMENDMENT PRIVILEGE
limits on prosecution
[interrogation]
Statements obtained in violation of the Sixth Amendment may NOT be used in the prosecutor’s CASE-IN-CHIEF
BUT may be used to impeach D’s contrary trial testimony
PRETRIAL IDENTIFICATION
purpose of limitations to pretrial IDs
[witness identifications]
to ensure that when a witness identifies a person at trial, she is identifying the person who committed the crime
(not merely the person she saw at the po-po station)
PRETRIAL IDENTIFICATION
2 ways to challenge pretrial ID
[witness identifications]
- Denial of 6th amendment right to counsel = applies only to POST-CHARGE line-ups and show ups, doesn’t apply to photo identifications)
- Denial of due process = the pigs used techniques that are UNNECESSARILY SUGGESTIVE and SUBSTANTIALLY LIKELY to produce misidentification
PRETRIAL IDENTIFICATION
2 remedies
[witness identifications]
- If the pretrial identification violates the defendant’s Sixth Amendment or Due Process rights, the pre-trial identification is inadmissible at trial.
- In addition, the witness will be precluded from making an in-court identification, unless the government can show by clear and convincing evidence an independent source for the in-court identification, such as where the witness had a good view of the accused at the time of the crime or where the witness’s initial description was precise and later corroborated
CONFRONTATION CLAUSE
confession of co-defendant
[pretrial and trial procedures]
If two defendants are tried jointly and a confession given by one of them implicating the other is admitted into evidence, this violates the confrontation clause, because the person implicated has no right to compel the other defendant to testify so that he may be cross-examined about the confession.
This is true even if both defendants have given interlocking confessions.
The confession of one may be used, however, if all references to the other defendant are removed (including any redactions that implicitly refer to the other defendant) or if the confessing defendant testifies
GOVERNMENT’S BURDEN OF PROOF
3 key takeaways
[pretrial and trial procedures]
- The state must prove all elements of the crime beyond a reasonable doubt.
- Other than prior convictions, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.
- Any fact that increases the mandatory minimum sentence also must be submitted to the jury and proved beyond a reasonable doubt.
DEFENSES
3 takeaways
[pretrial and trial procedure]
- The state may impose the burden of proof upon the defendant with regard to affirmative defenses, such as insanity or self-defense.
- Alibi is not an affirmative defense but rather negates an essential element of the crime. Thus, the state may not impose the burden of proving alibi on the defendant, but the state may require the defendant to give advance notice of his intent to claim alibi.
- A defendant is entitled to have access to a psychiatrist and a psychiatric exam when raising an insanity defense.
RIGHT TO A JURY
when does trial by jury apply?
[trial procedure]
whenever D is tried for an offense if max authorized sentence for this offense EXCEED 6 MONTHS
RIGHT TO A JURY
calculating whether max authorized sentence triggers jury trial
[trial procedure]
judged on an offense-by-offense basis rather than an aggregate basis
AKA right to a jury does NOT arise when, in a single proceeding, sentences for multiple petty offenses result in an aggregate prison term of more than 6 months
RIGHT TO A JURY
unconstitutional peremptory challenges
[trial procedure]
peremptory challenges for racial or gender bias = unconstitutional
RIGHT TO A JURY
juror quantity/unanimity
[trial procedure]
FED court juries must contain 12 members and reach a UNANIMOUS verdict
STATE court juries may be as small as 6 members BUT
6-member jury requires unanimity
12-member jury does not require unanimity (ex = 9-3 vote to convict is constitutional)
RIGHT TO A JURY
right to jury in juvenile delinquency proceedings
[trial procedure]
TRICK
There is no right to a jury in juvenile delinquency proceedings.
RIGHT TO A JURY
waiver to right to jury
[trial procedure]
D may waive the right to a jury trial if the waiver is VOLUNTARY, KNOWING, and INTELLIGENT
In most jurisdictions, the prosecutor may VETO D’s waiver and insist upon a jury trial
RIGHT TO COUNSEL
4 instances where D has right to counsel
[trial procedure]
- all important stages of the case (from custodial police interrogation to an appeal as a matter of right)
- plea bargaining process
- All felony cases
- In misdemeanors cases only if imprisonment is ACTUALLY IMPOSED (including suspended sentences w/ probation)
RIGHT TO COUNSEL
8 instances where D has NO right to counsel
[trial procedure]
- Misdemeanor cases if the punishment is probation, fines, or community service
- a grand jury proceeding
- the taking of physical evidence, such as handwriting exemplars or fingerprints
- a pre-indictment (or pre-charge) lineup
- a pre- or post-indictment photo display
- the initial appearance to determine probable cause to detain the defendant (Gerstein Hearing)
- discretionary appeals
- state post-conviction proceedings
RIGHT TO COUNSEL
standard for reviewing denials of right to trial
[trial procedure]
Denial of the right to counsel at trial is reversible error per se; the harmless error rule applies to non-trial deprivations of counsel.
RIGHT TO COUNSEL
pro se representation
[trial procedure]
An accused has a right to proceed pro se at trial as long as his waiver of the right to counsel is knowing and intelligent and he is competent (i.e., this requires a mental state somewhat greater than that required to stand trial).
There is no right to proceed pro se on appeal.
RIGHT TO COUNSEL
freezing D’s assets
[trial procedure]
Gov’s pretrial freeze of a defendant’s LEGIT, UNTAINTED assets which she needed to retain counsel violates the Sixth Amendment
BUT forfeiture of tainted assets is not a violation of the Sixth Amendment
RIGHT TO COUNSEL
effective assistance of counsel
[trial procedure]
Right to counsel = right to EFFECTIVE counsel = ineffective assistance of counsel violates 6th amendment
To prevail on ineffective assistance claim, accused must show
- that counsel’s performance was deficient (well below that of a competent lawyer) and
- but for the deficiencies, the result of the proceeding would have been different
SENTENCING + RETRIAL
resentencing after appeal
[post-trial procedure]
Rule = resentencing after a successful appeal may not be harsher than the initial sentence
EXCEPTIONS = a harsher sentence is permissible if
- D’s conduct AFTER the first conviction merits additional punishment OR
- the second sentence is determined by a JURY (and not a judge)
SENTENCING + RETRIAL
sentencing guidelines
[post-trial procedure]
ADVISORY sentencing guidelines = valid
MANDATORY sentencing guidelines = generally unconstitutional
SENTENCING + RETRIAL
prosecuting after appeal
[post-trial procedure]
D may not be prosecuted for a more serious crime in the second trial than the one for which he was convicted in the first trial
DOUBLE JEOPARDY
use
[post-trial procedure]
Double Jeopardy bars retrial by the SAME SOVEREIGN for the SAME OFFENSE
DOUBLE JEOPARDY
application
[post-trial procedure]
For Double Jeopardy to apply, the accused must have been in JEOPARDY in an earlier proceeding (BUT doesn’t require the first trial end with an acquittal or conviction)
Double Jeopardy applies only if the accused is being tried a second time for the same offense
Double Jeopardy applies only if the second trial is by the same sovereign
DOUBLE JEOPARDY
same sovereign
[post-trial procedure]
fed gov and state gov can both charge/try D for same conduct
BUT a state and its municipalities are the same sovereign
DOUBLE JEOPARDY
when does double jeopardy attach?
[post-trial procedure]
jury trial = when jury is sworn
bench trial = when the first witness is sworn
DOUBLE JEOPARDY
4 situations where accused may be tried twice
[post-trial procedure]
- jury at first trial was unable to agree on a verdict (aka HUNG JURY)
[on retrial, the prosecutor can re-try all charges in the prior trial, even if the former jury reached agreement (but did not return a verdict) on some of those charges] - first trial ended in MISTRIAL because of:
- a manifest necessity (ex = death or disability of judge or juror)
- a motion raised or supported by D or
- D’s misconduct - D may be retried after SUCCESSFUL APPEAL (unless the ground for reversal is the evidence was insufficient to support a guilty verdict aka appellate court says no reasonable jury could’ve found D guilty on evidence presented)
- D BREACHED PLEA BARGAIN agreement (ex = D agreed to testify against his confederates in exchange for a lesser sentence, but later refused to so testify)
DOUBLE JEOPARDY
3 takeaways for same offense requirement
[post-trial procedure]
- Two crimes are not the same offense if each crime requires proof of an independent element (e.g., manslaughter and reckless driving are separate offenses; reckless driving and drunk driving are separate offenses).
- Trial for a lesser included offense is barred if defendant was put in jeopardy for a greater offense (e.g., a defendant acquitted of robbery cannot be retried for larceny or assault).
- Likewise, if the defendant is tried for the lesser offense (e.g., assault), he or she may not be retried for the greater offense (e.g., robbery), except that an accused who was put in jeopardy for battery (or assault) may be tried for murder if the victim later dies.
DOUBLE JEOPARDY
2 takeaways for same sovereign requirement
[post-trial procedure]
- Obvi federal government and state government can both try D for same criminal actions
- BUT a state and its municipalities are the same sovereign
